Local Government Design, Mayoral Leadership, and Law Enforcement Reform

Kasner, Alexander J., Stanford Law Review

1. Exit

Apathy's practical disenfranchisement of minority residents in cities has led some to give up the cause of a fix and focus attention elsewhere. This is what we might call the "exit" strategy of minority influence through democratic representation. Where turnout is low due to apathy fostered by structural barriers and perpetual defeatism, exit calls for voters to find submunicipal modes of political participation instead.

Erwin Chemerinsky and Sam Kleiner have noted that traditional citywide governance makes it "difficult for minorities to gain significant political representation." (167) Accordingly, minority representation in proportion to its majority population status must sometimes cede to "minority rule without sovereignty." (168) That is to say, when minority populations cannot elect members to City Hall in proportions equal to their representation in the general population, they must turn to neighborhood-based associations to discuss and petition.

Recognizing the same phenomenon, Heather Gerken has called for submunicipal "[s]pecial purpose institutions" as a way to impact municipal policy when representation by voting in city elections is such a lost cause. (169) The goal, suggests Gerken, is to provide localized institutions that "provide minorities with a chance to exercise voice inside the system, [even if they cannot] set policy outside of it." (170) For Gerken, this comes in the form of nonsovereign institutions that nonetheless wield immense power: "juries, school committees, zoning commissions, administrative agencies, local prosecutors' offices, and the like." (171)

In a sense, meaningful minority participation in government might require what one commentator has called a "polycentric [city] government." (172) In this formulation, Gerken's institutions can take form in more autonomous "school boards, water districts, utility districts, and transit commissions." (173) And these submunicipal institutions can also be divided on a geographic basis, whether in the form of neighborhood councils (174) or "enterprise zones, tax increment finance districts, special zoning districts, and business improvement districts." (175) But adopting this model of minority participation as a replacement rather than a supplement to meaningful participation in higher levels of local government is largely unhelpful, as a good deal of public safety and policing policy is tasked to those higher levels.

2. Structural reform

In contrast, we might attempt to overcome minority underrepresentation through structural changes to either municipal elections or governance. The challenges and potential solutions become clear in a case like Ferguson, Missouri. The population of Ferguson is almost 70% African American. (176) In the last mayoral election, (177) 11.7% of the city's eligible population voted-17% of white eligible voters and 6% of African American eligible voters. (178) At that time, five of Ferguson's six city councilmembers, its mayor, and fifty of its fifty-three police officers were white. (179) In responding to this disjunction, commentators have suggested that electoral reform is needed. (180) Their focus has been on moving city elections on cycle with national elections, where turnout--especially among minority voters--is likely to be higher. (181)

The data bear out the wisdom of this switch but also suggest an addition: switching to a mayor-council governance structure. As one study determined, only two factors independently increased election turnout: holding local elections concurrent with national elections and the empowerment of the city mayor. (182) Controlling for several salient variables such as African American population percentage, voter turnout was predicted to be highest in mayor-council cities (34.68%); this was about nine percentage points higher than in council-manager cities with an independently elected mayor (25.89%) and more than eleven percentage points higher than in strict council-manager cities (22. …

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